1. The Individuals With Disabilities Education Improvement Act of 2004
Presenter: Art Cernosia

2. IDEA Reauthorization House Bill passed in April 2003
Senate Bill passed in May 2004
Conference Committee appointed in October 2004
Conference Bill passed in November 2004
President signs the bill into law on December 3, 2004
Provisions took effect on July 1, 2005 except personnel requirements

3. IDEA Regulations
U.S. Department of Education solicited comments prior to developing proposed regulations
Proposed Regulations unofficially released on June 10, 2005-released officially on June 21, 2005
Public Hearing and written comment period closed on September 6, 2005
Final Federal Regulations not expected until Summer of 2006

4. State and Federal Regulations
Federal Regulations shall be promulgated only to the extent necessary to ensure compliance
SEAs must identify in writing to the LEAs in the state and the U.S. Secretary of Education any state policy/rule/regulation not required by Federal law

5. Child Find Locate, evaluate and identify Residents birth to 21
Highly mobile children
Outreach activities

6. IDEA 2004 Changes
Adds children who are homeless (as defined in the McKinney-Vento Act) or who are wards of the state (defined by the state but excludes a child who has a foster parent)
The Local Education Agency (LEA) where the private school is located is responsible for child find for parentally placed students regardless of the student’s residency

7. California AB 1662
The LEA of residence shall locate, identify and assess all private school children suspected of having a disability residing in the LEA

8. Judicial Decision
State policy that expects that general education interventions be considering before referring a student for a special education assessment is consistent with the IDEA
Johnson v. Upland Unified School District
(9th Circuit Court of Appeals (2002))

9. Evaluation Parent Input Teacher/Service Provider Observations
Classroom Based Assessments
Functional and Developmental Information
Information Concerning Access/Progress in the General Education Curriculum
Technically Sound Instruments to Measure
Cognitive, Behavioral, Physical and Developmental Factors

10. Judicial Decision
Parents have the right to examine their child’s education records and receive copies within five days of their request. This includes copies of test protocols which is deemed a “fair use” under federal copyright law.
Newport-Mesa Unified School District v. State of California (Federal District Court, Central District of California (2005)).

11. IDEA 2004 Changes
Evaluation completed with an eligibility decision made within 60 days of parent consent unless the state otherwise determines
Screening by teacher or specialists to determine instructional strategies for curriculum implementation is not considered an evaluation

12. AB 1662
The IEP Team must meet within 60 days of receiving parental consent for the initial assessment of the pupil
Allows the parent to agree to an extension in writing
Does not include days between regular school sessions or days of vacation in excess of five school days

13. IDEA 2004 Changes
Evaluation involving two school districts in the same academic year shall be coordinated and expeditiously completed
Evaluations shall be administered in a language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally unless not feasible

14. Consent for Evaluation
Informed written consent required before conducting the initial evaluation
Excludes a review of existing information or a test/evaluation given to all children
If consent refused, mediation and due process can be pursued

15. IDEA 2004 Changes
If the child is a ward of the state and not residing with the parents, reasonable efforts shall be made to obtain consent
No consent required if parent cannot be found, parental rights have been terminated or a Court has appointed an individual with educational authority

16. Reevaluations
Conducted at least once every three years unless conditions warrant or the parent or teacher requests
The scope of the reevaluation is determined by the IEP Team
Parents given option to ask for additional assessments even if Team determines they are not necessary

17. IDEA 2004 Changes
Reevaluation not conducted more than once per year unless the parents and LEA agree
Conducted at least every three years unless the parents and LEA agree that a reevaluation is not necessary

18. IDEA 2004 Changes
A reevaluation is not required if a student is exiting special education due to graduation with a regular diploma or exceeding the state’s age eligibility

19. Independent Educational Evaluations
Anytime at parent expense
At public expense if parent disagrees with district’s evaluation
District must pay or initiate a Due Process hearing
Team must consider the IEE

20. Judicial Decisions
The Team must consider the results of the IEE. As part of the consideration, the Team must address any differences between the school’s evaluation and the IEE
B.S. v. Seattle School District (9th Circuit Court of Appeal (1992)).

21. Eligibility Meets One or More of the Disability Categories
Adversely Affects Educational Performance
In Need of Special Education
Specially Designed Instruction

22. Judicial Decision
A student was not deemed eligible for special education. Although it was a close question whether the student had an ED or OHI, there was no adverse affect on educational performance
R.B. v. Napa Valley Unified School District
(Federal District Court, Northern California (2005)).

23. IDEA 2004 Changes
Not eligible if determinant factor is lack of appropriate reading instruction including the essential components of reading per NCLBA (phonemic awareness, phonics, vocabulary development, reading fluency and reading comprehension)
State policies and procedure to prevent over identification or disproportionate representation by race or ethnicity

24. RTI
LEAs allowed to opt out of the severe discrepancy SLD criteria and use a process involving “response to scientifically based interventions” as part of the evaluation

25. Proposed IDEA Regulations
SEA must adopt SLD criteria which may prohibit use of “severe discrepancy” element
SEA must permit use of a process based on response to scientific, research based interventions
SEA may permit use of other alternative research based procedures for SLD determinations ( )

26. Proposed IDEA Regulations
SLD may be determined if the child:
Does not achieve commensurate with child’s age in specified areas when provided appropriate learning experiences
Fails to achieve a rate of learning to make sufficient progress to meet State approved results when assessed with RTI process; or
Exhibits a pattern of strengths and weaknesses in performance, achievement or both (

27. Proposed IDEA Regulations
As part of the evaluation process, must consider whether prior to or as part of the referral process the child received appropriate high quality research based instruction in regular education settings delivered by qualified personnel; and
Data based documentation of repeated assessments reflecting formal progress
Progress reported to parents

28. Proposed IDEA Regulations
If the child has not made adequate progress after an appropriate period of time, a referral must be made
60 day timeline applies unless extended by mutual written agreement
( )

29. Free Appropriate Public Education (FAPE)
Special Education and Related Services
Provided at public expense, under public supervision
Without charge
Meet the standards of the State
Include pre-school, elementary or secondary school education
Provided in conformity with the Individualized Education Program (IEP)

30. FAPE Standard
The Supreme Court in the Rowley case established two criteria in determining FAPE:
Have the procedures been adequately complied with? ; and
Is the IEP reasonably calculated to enable the child to receive educational benefits?

31. IEP Teams Parents Student, where appropriate Regular Classroom Teacher
Special Education Teacher/Service Provider
District Representative
Others with Knowledge or Expertise
Individual who can Interpret Instructional Implications of the Evaluation
Other Agency Representatives (Transition Services)
Representative from private school

32. Judicial Decisions
The Court deemed that FAPE was denied as a result of an IEP Team that was not duly composed
M.L. v. Federal Way School District (9th Circuit Court of Appeals (2005)).
Shapiro v. Paradise Valley Unified School District (9th Circuit Court of Appeals (2003))

33. Judicial Decision
Failure to provide parents with copies of the requested evaluation reports prior to the IEP meeting resulted in a denial of the parents rights under the IDEA. The IEP therefore was deemed inappropriate
Amanda J. Clark County School District (9th Circuit Court of Appeals (2001)).

34. IDEA 2004 Changes
Parents and the LEA may jointly excuse an IEP Team member from attending meeting
If curricular area will be discussed, the excused member must provide written input to the Team
Agreement must be in writing and parental consent must be obtained

35. AB 1662
The parents and the LEA must confer with the IEP Team member before determining whether to excuse the member

36. IDEA 2004 Changes
If previously served under Part C, the parent must be afforded the right to request that the Part C Coordinator or representative be invited to the initial IEP meeting
Video conference or conference call meetings permitted if agreed to

37. IDEA 2004 Changes
The IEP may be amended between the annual review meetings without a new meeting if the parents and LEA agree
IEP amendment shall be in writing
Upon request, the parent shall be given a revised IEP with the amendments incorporated

38. AB 1662
The IEP amendment must be signed by the parties if the IEP will be amended without an IEP Team meeting

39. IEP Considerations Strengths/Concerns Behavior
Language issues for ELL students
Braille instruction for VI students
Communication needs
Assistive Technology
Prohibition on requiring medication as a condition for services

40. IEP Content Present Levels of Performance Measurable Annual Goals
Objectives/Benchmarks
Special Education and Related Services
Frequency
Duration
Location
Dates for Initiation

41. IEP Contents
An explanation of the extent, if any, to which the child will not participate in class and extracurricular and not-academic activities with nondisabled children
Supplementary Aids and Services
Classroom Modifications

42. IEP Contents Supports for School Personnel
Participation in District and State Assessments
Transition Goals and Services
Extended School Year,when appropriate
How Progress will be measured
Method for Reporting Progress to Parents

43. IDEA 2004 Changes
Short term objectives and benchmarks are eliminated except for students who take alternate achievement assessments based on alternate standards
Annual measurable IEP goals must include academic and functional goals
Special education and related services must be based on peer reviewed research to the extent practicable

44. IDEA 2004 Changes
Transition to be addressed no later than the IEP in place when the student turns 16
Appropriate measurable post-secondary goals related to training, education, employment, and independent living skills
Exiting students (due to graduation, age) must be provided a summary of academic and functional performance with recommendations to assist them in meeting transition goals

45. IDEA 2004 Changes
Description how progress toward IEP goals will be measured and when periodic progress reports will be provided the parents

46. Related Services Standard (Tatro Criteria)
Child must have a disability and be in need of special education
Service must be necessary to aid the child to benefit from special education
Service must be able to be performed by a non-physician

47. IDEA 2004 Changes
Definitions of Related Services and Assistive Technology excludes surgically implanted medical devices or replacement of such device
Related services includes nursing services designed to enable the student to receive FAPE

48. Proposed IDEA Regulations
Related services do not include a medical device that is surgically implanted, the optimization of device functioning, maintenance of the device or the replacement of that device. (300.34(b))

49. IEPs and Assessment Participate in Regular Assessment
Participate in Regular Assessment with Accommodations
Participate in Alternate Assessment
Regular Academic Standards
Alternate Academic Standards for Students with Significant Cognitive Disabilities

50. IDEA 2004 Changes
IEPs must include appropriate accommodations necessary to measure academic achievement and functional performance on state/local assessments
IEPs shall include a statement why an alternate assessment is required and why the particular alternate assessment has been selected

51. Modified Achievement Standards
Proposed Federal Regulations issued on December 15, 2005
Based on State Guidelines
IEP Team decision regarding what students qualify—can be any disability
Cap of 2% at LEA/SEA level for determining proficiency for AYP
Students exiting special ed can be counted for 2 additional years under subgroup

52. IEP Implementation Parents shall be provided a copy of the IEP
IEP must be accessible to each service provider who is responsible for its implementation
Each service provider must be informed of their specific responsibilities in implementing the IEP

53. IDEA 2004 Changes
If a student transfers to a new LEA within the same state, the new LEA shall provide comparable services in consultation with the parents until the IEP is adopted or revised
If the transfer is to a new state, the new LEA shall provide comparable services in consultation with parents until a new evaluation is conducted, if necessary, and a new IEP developed

54. AB 1662
An IEP shall be developed or revised within 30 days

55. Least Restrictive Environment
To the maximum extent appropriate, students with disabilities shall be educated in classroom and other activities with peers who are not disabled
Continuum of Alternative Placements
IEP shall EXPLAIN the extent, if any, to which the student will not be educated with peers who are not disabled
Supplementary Aids and Services

56. Continuum of Placements
Regular Class with Supplementary Aids and Services
Resource Room
Special Class
Special Day School
Homebound
Residential School

57. Placement Based on the IEP Determined at least annually
Is as close as possible to the child’s home
Unless the IEP requires some other arrangement, the child is educated in the school that he/she would attend if nondisabled

58. LRE Factors Educational benefits of placement in a regular class
Non-academic benefits such as modeling appropriate behavior and language
Effect on the teacher and the other students
Costs involved
Holland v. Sacramento School District (9th Circuit Court of Appeals (1994)

59. Behavioral Intervention Plans
IEP Team determination based on the evaluation results
If behavior impedes his/her learning of that of others, IEP must include:
Positive behavior interventions
Strategies
Supports

60. Judicial Decision
The IDEA does not contain specific substantive requirements for IEP behavior plans. Although the behavioral goal was not achieved, the Court upheld the IEP provided a FAPE
Alex R. v. Forrestville Valley Community School District (7th Circuit Court of Appeals (2004))

61. Discipline
Short Term Measures
Long Term Measures
Interim Measures

62. Short Term Suspensions
10 School Days or Less in a School Year
Follow Regular Disciplinary Procedures
No need to:
Determine Manifestation
Conduct a Functional Behavioral Assessment
Provide Services (unless services are provided to non-disabled students who are so suspended)

63. Short Term Disciplinary Hearings
Applies to all students
Informal Hearing with Administrator
Notice of the charges
Explanation of the evidence
Opportunity for student to share their story
Check state and local policies for specific
requirements

64. In School Suspensions (Comments to the 1999 IDEA Regs)
Does not count as a day of suspension if:
Student is afforded the opportunity to progress in the general education curriculum
Student is provided their special education/relates services
Student participates with non-disabled peers to the extent they would in their regular placement
(Comments to the 1999 IDEA Regs)

65. Other Disciplinary Considerations
Portions of a day in which the student must be removed must be accounted for
Bus suspensions are deemed a removal if:
Transportation is listed in the IEP
No alternate transportation has been offered

66. Disciplinary Change of Placement
More than 10 consecutive school days of disciplinary removal
More than 10 cumulative school days of disciplinary removal in a given school year when a determination is made that a pattern exists

67. More than 10 cumulative school days of removal in a school year
Determine if there is a change of placement:
Length of each disciplinary removal
Proximity of the removals to one another
Total amount of time student is excluded
If there is a change of placement, follow long term suspension/expulsion procedures

68. IDEA 2004 Changes
School personnel may consider any unique circumstances on a case by case basis when determining whether to order a change of placement

69. Services for students removed for more than 10 school days in a school year
Services to the extent necessary to enable the student to:
Appropriately progress in the general curriculum
And
--Appropriately advance toward achieving their IEP goals

70. Interim Alternative Educational Setting (IAES)
Student possesses or carries a dangerous weapon to school or a school function
Student knowingly possesses or uses an illegal drug
Student sells or solicits a controlled substance

71. IDEA 2004 Changes
Adds “inflicting serious bodily injury” as grounds for IAES
Showing of substantial risk of death, extreme physical pain, protracted/obvious disfigurement,
protracted loss/impairment of a bodily member or organ/ mental faculty

72. IAES Up to 45 school days IEP Team determines services and placement
Services that afford opportunity to participate in the general curriculum
Services called for in the IEP
Services to address the behavior

73. IAES for Safety Reasons
Determination by Hearing Officer or Court
Standard
Burden of proof on the school to show by a substantial evidence that:
Student’s return is substantially likely to result in injury to self or others;
Current placement is appropriate; and
School made reasonable efforts to minimize the risk of harm to self/others

74. Functional Behavioral Assessment
IEP Team, after 10 school days of disciplinary removal, meets to either:
Develop a functional behavioral assessment plan if a FBA was not previously conducted Or
--Review the behavioral intervention plan as part of the IEP to determine what, if any, revisions are necessary

75. Change of Placement Procedures
Notify parents of their rights
Conduct a manifestation determination
Plan for services starting no later than the 11th cumulative school day of removal

76. Manifestation Determination
Relevant IEP Team members and parents (as determined by the parents and LEA)
Determination made no later than 10 school days after determination of disciplinary sanction
Review information provided by parents and other evaluation information

77. Old Manifestation Standard
Manifestation unless IEP Team determines that in relation to behavior:
IEP and placement is appropriate
IEP behavior component was implemented
Disability did not impair the student’s ability to understand the impact and consequences of their behavior; and
Disability did not impair the student’s ability to control their behavior

78. IDEA 2004 Changes
Manifestation if behavior was caused by or had a direct or substantial relationship to the disability or was the direct result of the failure to implement the IEP
If manifestation, conduct FBA, implement/revise BIP, return to last placement unless otherwise agreed to as part of the behavior intervention plan

79. If there is a Manifestation
Disciplinary removals not permitted
Services are provided
If necessary, IEP Team determines what, if any, revisions are necessary for IEP services and placement

80. If No Manifestation
Student is subject to the regular disciplinary process of the school
Services must be provided no later than the 11th cumulative school day of removal in the school year

81. Students Not Yet Eligible
Basis of Knowledge:
Parent expressed concern in writing regarding need for special education
Parent requested an evaluation; or
School personnel expressed concern about behavior or performance in accord with the special education referral system

82. IDEA 2004 Changes
Removed, as a basis of knowledge, the criteria that the student’s performance or behavior demonstrated a need for special education

83. Referral to Law Enforcement
No limit to report a crime to appropriate agencies
Transfer of special education and disciplinary records to the agency
Must be done in accord with the requirements of FERPA

84. Procedural Safeguards
Participation in Meetings
Written Notice of Proposed/Refused Actions
Informed Consent
Access to Education Records
Independent Education Evaluations
Mediation
Due Process Hearings
Administrative Complaints

85. IDEA 2004
Parent means a natural, adoptive or foster parent of a child (unless prohibited by State law), a guardian (but not the State if the child is a ward of the State), or individual acting in the place of a parent (including a grandparent, stepparent or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare.

86. Prior Written Notice proposal to change or refusal to change
Identification
Evaluation
Educational Placement
Provision of FAPE

87. Consent
Initial Evaluation—may use mediation or due process if no consent
Reevaluation, if additional information is deemed necessary
Initial Provision of Special Education Services
Use of Insurance
Disclosure of education records

88. AB 1662
Parent consent also required for subsequent changes to the special education program component
If the LEA determines that the component is necessary to provide FAPE and no parental consent is received, the LEA shall initiate a due process hearing

89. IDEA 2004 Changes
Consent—no override provision for lack of consent for the provision of special education and related services
If no consent for services, LEA not required to convene IEP meeting or develop IEP
Refusal to consent for services exempts LEA from violations of responsibility to provide FAPE

90. IDEA 2004 Changes Procedural Safeguard Notice provided: Once per year
Initial Referral
Request from Parent
Due Process Complaint/Administrative Complaint

91. Mediation SEA responsibility
Available at a minimum when a Due Process Hearing is requested
Voluntary
Confidentiality Pledge
Written Mediation Agreement

92. IDEA 2004 Changes
Mediation must be made available at any point if agreed upon
Mediation agreements
Executed as a legally binding agreement
Provide for the confidentiality of all discussions
Signed by parents and District representative
Enforceable in state or Federal Court

93. Due Process Hearing
Issues of evaluation, identification, educational placement and FAPE
45 day timeframe
Impartial Hearing Officer
One or two tiered system

94. Judicial Decision
The party challenging the IEP has the burden of proof in a due process hearing
Weast v. Schaffer (United States Supreme Court (2005))

95. Hearing Rights
Representation by attorney or assistance from lay advocate
Present evidence and cross examine witnesses
Compel attendance of witnesses
Five Day Rule for presentation of Evidence

96. Parent Rights Open or closed hearing Student presence at hearing
Form of transcript
Form of decision

97. IDEA 2004 Changes
Statute of Limitations is 2 years unless state establishes different timeframe—exceptions if parent was mislead or not informed
Parent or LEA must file written request for due process hearing specifying issues, the facts and the resolution sought
Party may file objection with Hearing Officer challenging sufficiency of request
LEA files PWN if not previously done
Receiving party files a response to the request within 10 days

98. IDEA 2004 Changes
If parent requests hearing, a resolution meeting with parent and relevant IEP Team members held within 15 days
Resolution meeting occurs unless both parties waive meeting or request mediation
No LEA attorney unless parent attorney present

99. IDEA 2004 Changes
If resolution reached, resolution agreement shall be in writing and legally binding
Resolution agreement enforceable in Court
Agreement may be voided within 3 business days
If no resolution within 30 days, hearing process commences

100. IDEA Changes
No new issues can be raised unless agreed to or hearing officer allows (at least 5 days prior to hearing)
Hearing Officers shall possess the knowledge and ability to:
Understand Federal/State law and Court decisions
Conduct Hearings
Render and Write Opinions

101. IDEA 2004 Changes
No denial of FAPE based on procedural deficiencies unless resulting in loss of educational opportunity or infringing parental rights
Hearing decisions can be appealed to Court within 90 days unless the state establishes a different time frame

102. Stay Put
Unless otherwise agreed to, student remains in the last current placement
Exceptions
Dangerousness
Final Hearing decision agrees with parents that a change of placement is necessary

103. Attorneys Fees
Court may award attorneys fees and costs to parents who prevail in the administrative hearing or judicial proceeding

104. IDEA 2004 Changes
SEA/LEA that prevails may seek attorneys fees from the parents’ attorney if the Court finds that the complaint is frivolous, unreasonable, without foundation or prolonged litigation
SEA/LEA that prevails may seek attorneys fees from the parents’ attorney or parent if the Court finds the complaint was filed to harass, cause unnecessary delay or increase costs of litigation

105. State Administrative Complaints
Investigate written complaint that a public agency has violated the IDEA
1 yr. period, 3 yrs. if compensatory ed
Issue a decision within 60 days unless extended for extenuating circumstances
Order corrective actions as warranted including reimbursement or compensatory education

106. Personnel
All teachers and related services personnel must be qualified---meet applicable state licensing, certification or other applicable requirements
Paraprofessionals may assist in the provision of services if they are supervised and trained under standards set by the state